Stirrat & Moffat v Blue Mountains City Council

Judgment Background 1This appeal was lodged against council's deemed refusal of an application for the erection of a multi - dwelling development, comprising 19 x one and two - bedroom units at 8 Great Western Highway (GWH) Leura. The units are contained within a single 4 - storey building and the proposal includes basement parking for 19 resident vehicles and 3 visitor car spaces. 2The building configuration comprises 2 sections (See Attachment A) joined by a recessed common lobby/core area (generally 6m wide) and comprises:

• Ground floor containing 2 x 1 bedroom units and 3 x 2 bedroom units and a storeroom for garbage bins.
• First and second floors containing 7 x 2 bedroom units.
• Third floor containing a common rooftop terrace for entertaining. 3In refusing the application, council identified a number of issues, which are summarised as follows:
• The acceptability of the proposal in terms of the building width and depth, relative to the specified 'design considerations'.
• Building height.
• Building form and scale.
• Character.
• Precedent The site 4The site is described as Lot 44 in DP 1052149, which has an area of 2277.24 sq m. It has a physical frontage of 51m to a slip road off the GWH. But there is a single vacant Lot 93 DP 1052149 with an area of 400.1sq m located between the site and the road boundary. This land is owned by the RTA and reserved for road widening. During the course of the appeal Lot 93 was dedicated. 5The site falls from its frontage about 4m to the rear, where it adjoins the Great Western Railway corridor. There is a row of mature trees located towards this rear boundary. Further to the north of the site is the overpass for the GWH and a significant medium density development the "Spires Development" is located on the south western corner of the slip road and Leura Mall. This forms the main entry into the Leura commercial centre. Planning controls 6The following controls apply and are to be considered: .1 State Environmental Planning Policy (Infrastructure) 2007 .2 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development. .3 Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River .4 Drinking Water Catchments Regional Environmental Plan No 1. 7The primary controls are contained in the Blue Mountains LEP 2005 (BLEP2005); under which the land is within the Village - Tourist zone - and the development is permissible with consent. Clause 20 contains the objectives for this zone, of which the following are relevant: (c) To ensure that development contributes to a strengthening of the landscape character and visual setting along significant tourist routes. (d) To retain and enhance the established traditional streetscape character and heritage values, including mature vegetation and gardens, that contribute to the attraction of the area for residents and visitors. 8Clause 13 of the LEP provides: 13 General locality management (1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless: (a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and (b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use)... 9Also relevant are the provisions of cl 14 dealing with locality management within the Village Tourist zone, which provides that consent shall not be granted to development unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified for the relevant village within Schedule 1, and complies with those provisions . 10Accordingly, the land is within the " Leura Precinct VT - LE01 - Leura Gateway Precinct " and the Schedule 1 provisions state: